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Underage Drinking Convictions Can be Avoided

On behalf of McClenahen Law Firm posted in Underage Drinking on Monday, April 22, 2013.

In a previous blog, I explained how to avoid being noticed by the police and getting charged with underage drinking or public drunkenness in the first place. In this blog, I am going to explain what steps you can take if you have contact with the police related to an underage drinking or public drunkenness investigation. I am not encouraging you to drink underage, but I am going to enlighten you as to your rights under the Pennsylvania and United States Constitutions.

I am a criminal defense attorney in State College, PA, home of Penn State University. In this town, underage drinking charges are as common as, well, the common cold. But just as you can take steps to avoid contracting a cold, so too can you take steps to avoid an underage drinking conviction. Heed these words, for you would much rather have a stuffy nose and headache for a few days than a driver's license suspension and a conviction on your record.

My first bit of advice applies to all charges. If you receive a summary offense citation over the weekend, don't run to the Magisterial District Court the first thing Monday morning to plead guilty, before you have even spoken to an attorney! The fact that you may be factually guilty does not mean that an attorney cannot help you. If we defense attorneys represented only factually innocent people, we would be like the Maytag Repair Man. Most of the time, we are helping people who are factually guilty. It is far easier to nip these things in the bud than to try to get them off your record later.

One tip concerning underage drinking should be fairly obvious, but most people charged with underage drinking fall into this trap. If a cop asks you whether you have been drinking, don't say yes! You have an absolute right to remain silent and not incriminate yourself. It becomes far more difficult to win any case at trial where there is a confession to one of the major elements of the offense. On the flip side, I suggest that you not lie to the police if you were, in fact, drinking. Either say, "I would rather not answer" or "I would like to invoke my Fifth Amendment right to remain silent." At that point, the officer is supposed to cease any further questioning.

My next tip is that you should not agree to submit to a breathalyzer test. A lot of people have a misconception that they must submit to a breathalyzer test any time a police officer asks them to do so. This is simply not true. What is true is that a motorist suspected of DUI must submit to a chemical blood test or a certified breath test, lest he lose his driver's license for a year for the refusal. You are never required to submit to a breath test while under investigation for underage drinking or public drunkenness.

Interestingly enough, hand-held, portable breathalyzer tests are no longer admissible in court in Pennsylvania, for things like underage drinking and public drunkenness charges, yet you should still refuse the test. If you test positive for alcohol, especially if your BAC is fairly high, the officer will then try to manipulate you into a confession. There is nothing unethical about police use of psychological manipulation. The cop is just doing his or her job by using a tried and true police tactic. That being said, you are not obligated to make the cop's job any easier.

My next tip is that you need to be aware that you do not have to show the cop your ID when you are stopped, for the simple reason that in the United States, citizens are not required to carry identification with them. It's a completely different story if you are driving. In that case, you must present your driver's license. But if you are merely walking back to the dorms or standing around a Beaver Stadium tailgate, you are not required to carry an ID with you just in case a cop happens to ask to see it.

While on the subject of IDs, a cop cannot see your ID if you don't have it with you. Sometimes cops have been known to reach into a suspect's wallet or purse in search of an ID, even without consent. If you have your ID on you, but refuse to show it to the cop, this will appear as if you are being uncooperative. Thus, I would advise that you show your ID, if you do have it with you. That being said, you can't be accused of being uccoperative if you simply left your ID at home. You need an ID with a date of birth to get into bars when you are over 21, but there is no need to carry an ID with a date of birth when you are under 21, unless you are driving.

Why is it important that you not show your ID? The simple reason is that the crime of underage drinking in Pennsylvania is defined as possession, consumption or the attempt to purchase alcohol while being less than 21 years of age. The Commonwealth, usually represented by the arresting officer at trial, has to prove beyond a reasonable that you were, in fact, less than 21 years of age. The mere fact that you really are 18, 19 or 20 years old is not enough for a conviction. The officer has to prove your age. Typically at trial, the officer will testify that he observed your ID and noted your date of birth. I have had my share of cases where the cop never would have been able to prove my client's age, had he or she not engaged in self-incrimination by showing the cop proof of being underage. Likewise, I have won underage drinking cases precisely because my clients did not have their IDs with them.

While we are on the subject of ID, I should make it abundantly clear that you should never lie about your identity or date of birth to the police. If you are the subject of a criminal investigation, you are required to indeitfy yourself. Although you are not requried to carry an ID card with you, you still must correctly identify yourself. If you are under an official polcie investigation for a crime like underage drinking, and you give the cop a fake name or date of birth, you could be charged with false identification to law enforcement. This is a misdemeanor charge, which is far more serious than a summary offense like underage drinking.

In an underage drinking trial, your statement as to your date of birth should be insufficient proof of your age. The police need some other proof, such as a copy of your certified driving record, or testimony that the cop saw your valid driver's license, pass port of Pennsylvania photo ID.

Even if you follow all of my tips, there could be situations where we have little chance of winning at trial. For example, if you are visibly intoxicated to the point where you just vomited on the cop's boots and have alcohol fumes emitting from your pours or where the cops just saw you shot-gun a can of Natty Ice in the Beaver Stadium parking lot, and the police saw your driver's license, you are not going to win at trial, baring a miracle. In such a situation, the best course of action is usually some type of plea agreement, which will lessen your harm, rather than taking your case to trial.

And that leads us to my final tip, which might be the most useful of all. You should never be rude or combative with the police, whether you are suspected of underage drinking, public drunkenness, or any crime. Expressing your frustration by being obnoxious to the police never does any good. If you must vent, do so later when you talk to your friends. Being polite and cooperative will go a long way, if the best means of dealing with your case is a plea agreement, rather than a trial. You must always remain polite while explaining that you left your ID at home, declining a breath test and refusing to answer whether you have been drinking.

Failing to give a full confession does not mean you are being uncooperative. In fact there have been times when I have argued to assistant district attorneys that my client should get consideration for being cooperative, because he confessed. The response I have sometimes received is "a confession is not cooperation," as the prosecutor's idea of cooperation is testifying as a witness for the Commonwealth in another case, not confessing to one's own crime. Thus, the flip side of this line of thinking is that failure to confess does not constitute a lack of cooperation.

Ideally, you have read this blog before ever having had a police encounter, but I know all of you will not have been so lucky. If you have been charged with underage drinking, public drunkenness, disorderly conduct or any other offense, call me at (866) 806-1061 for a free consultation. http://www.mattmlaw.com/blog/underage-drinking/

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